Assuming that there is no nonsmoking rule within the individual units, smoking is a legal activity. If an owner has the right to smoke in their wholly owned unit, there is really nothing that the Association can do.
I would recommend a response, such as the following:
“Dear Complaining Owner:
We have received your complaint about second hand smoke emanating from your neighboring property owner. Unfortunately, the Association does not have any rules prohibiting smoking within units, which is property wholly owned by each unit owner. Furthermore, smoking is a legal activity which the Association does not prohibit. Despite the foregoing, we have brought your complaint to the attention of your neighbor. Unfortunately, due to the lack of any legal authority, we are unable to take any further action on your behalf.
We recommend that you contact your neighbor directly to see if you can work out some type of accommodation to eliminate the negative impact that you are suffering. The Association considers this matter closed and will take no further action.
Let’s assume first that your Regulations provide that owners may not engage in activities that produce unreasonable odors, or create a hazard or a nuisance to other owners. On one hand, an HOA or a Condo Association does not have the same level of obligation to owners as a co-op corporation, since they are not the “landlord” of their owners. On the other hand, the Association does have an obligation to make good faith efforts to investigate problems affecting the Association members. You also have considerable scope for such investigation based on your business judgment, so long as your failure to act does not expose an owner to immediate danger.
Based on the foregoing, you should communicate the complaints to the other owner and verify whether they have any factual basis (e.g., does the other owner actually smoke?). After that your potential responses vary. You could tell the complaining owner that he or she has an independent right of action against the other owner for nuisance or even violation of the Association rules, and that the Association has elected not to take further action. You could volunteer staff to go through the homes and seal up cracks in joints, floors and outlets through which smoke might travel. Because the complainant has COPD, taking some proactive step would demonstrate your intent to make a “reasonable accommodation” to assist them.
One risk of leaving the solution to the owners is that the source of the problem may lie with Association property. Do any of the partitions or walls between the two townhouses belong to the Association? Is there a common ventilation system between the homes? Is the Association responsible for repairing or maintaining any of the foregoing? If it is determined that the smoke exfiltration results from voids in the partitions, or the common ventilation, then the Association may have the responsibility to fix the problem at its own expense.
Some Associations have gone further and amended their governing documents to prohibit smoking anywhere within the property, including within individual homes. This mitigates most of the problems of investigation and enforcement, and might even be welcomed by owners and buyers.
Bottom line: Even though the Association is not responsible for curing the problem, it does have a duty of reasonable investigation and (based on what it discovers) taking reasonable steps to accommodate the disabled owner’s needs. (Such reasonable steps would usually not include litigation, but might require significant expense if the Association could alleviate the problem through work on its own property.) In order to avoid exactly these uncertainties, some Associations have passed amendments to their governing documents to prohibit smoking anywhere on the property, including within individual units.
Smith Buss & Jacobs LLP
733 Yonkers Avenue
Yonkers, NY 10704
In this case, the Board has received a complaint of second-hand smoke from a unit owner with a medical condition. It is my understanding that the occupants of the suspected unit have been questioned and deny being the source of any second-hand smoke. It appears that the Board has attempted to investigate the matter without success. We do not know whether smoking violates this Association’s governing documents. In general, an Association is not required to prohibit smoking. Unless smoking somehow violates this Association’s rules, and the source of the second-hand smoke can be proven, the Association would not need to take any further action. If the Association wishes to prohibit smoking, it should consult with legal counsel.